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2012 DIGILAW 87 (GAU)

Rekha Barooah v. Jitendra Kumar Baruah

2012-01-23

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. This application under Article 227 of the Constitution of India, seeking issuance of a writ in the nature of certiorari and/or any other appropriate writ, order or direction has been filed in respect of the order dated 29.8.2011 passed by the learned Munsiff No. 2, Jorhat in Misc. G) Case No. 27/2011 arising out of T.S. No. 24/2008, by which the prayer of the defendant in the suit to stay the proceeding in the suit has been rejected. The respondent herein as the plaintiff has instituted the Title Suit being T.S. No. 24/2008 against the petitioner as the defendant for recovery of khas and vacant possession of the suit room and also for recovery of arrear compensation of Rs. 48,000/-. In paragraph 4, 5 and 11, of the plaint, it has been stated thus : 4. That as per terms of the agreement the monthly rent of the suit room was fixed at Rs. 4,000/- (rupees four thousand) only out of which Rs. 3,000/- (rupees three thousand) only be the clear rent and Rs. 1,000/- (rupees one thousand) only be the service charge for maintenance of the property. It is also agreed that besides paying the rent as stipulated, the defendant is also liable to pay a sum of Rs. 489/- (rupees four hundred eighty nine) only per month to the plaintiff for payment of Service Tax with effect from June, 2007. The rent is payable in advance within 10th day of every month. 5. That the agreement further stipulates that if the defendant wants to renew the agreement for a further period then the rent will be Rs. 9,000/- (rupees nine thousand) only per month for the next one year i.e. from 1.4.08 to 31.3.09 with other terms and condition as mutually agreed upon between the parties. 11. That as per terms of the tenancy agreement executed between the parties, in case of renewal of the tenancy agreement the rent of the suit room would be Rs. 9,000/- (rupees nine thousand) only from the month of April, 2008. And as such, the plaintiff is entitled to and claim a sum of Rs. 9,000/- (rupees nine thousand) only per month as compensation for illegal and unauthorized occupation of the suit room by the defendant on and from 1.4.2008 till the recovery of khas and vacant possession of the suit room. 2. And as such, the plaintiff is entitled to and claim a sum of Rs. 9,000/- (rupees nine thousand) only per month as compensation for illegal and unauthorized occupation of the suit room by the defendant on and from 1.4.2008 till the recovery of khas and vacant possession of the suit room. 2. In the written statement filed by the defendant/petitioner, the above quoted paragraphs have been responded to as follows : 7. That in answer to para 4 of the plaint it is amply made clear that monthly clear rent is Rs. 3,000/- p.m. and Rs. 1,000/- is service charge. In spite of such fixation of monthly rent the defendant to avoid conflict with the plaintiff-landlord and on his pressure used to pay him regularly Rs. 4,000/- as rent. The landlord-plaintiff has no right under law to realize extra amount of Rs. 489/- per month as service tax from the defendant. The tenancy of the defendant under the plaintiff in respect of the suit room continued as statutory tenant and also under other provision of law. That as per the provisions of the Assam Urban Areas Rent Control Act, 1972, the plaintiff is not entitled under the law to realize an amount of Rs. 489/- (Rupees four hundred and eighty nine) only as service tax and hence the defendant denies the averment of the plaintiff that the defendant is liable to pay service tax with effect from June, 2007 as the same is not tenable in the eye of law. The answering defendant further states that under the Assam Urban Areas Rent Control Act, 1972, there is no provision for service tax. 8. That as that defendant was in need of a tenanted premises like the present suit premises for carrying on her business and as there was dearth of such premises so the plaintiff landlord used pressure to sign in the agreement which contained onerous terms not permissible even under law. That non implementation of the clause of agreement as detailed in para-5 of the plaint by this defendant cannot lead to her ejectment from the suit room. Her tenancy never ceased to exist because of the non implementation of that clause of the agreement. The so called agreement was the outcome of undue pressure undue influence, coercion and absence of freewill and being and being violation of the provision of law are not binding on the defendant. Her tenancy never ceased to exist because of the non implementation of that clause of the agreement. The so called agreement was the outcome of undue pressure undue influence, coercion and absence of freewill and being and being violation of the provision of law are not binding on the defendant. The agreement dated 27.3.2007 between the plaintiff and the defendant being void in the eye of law in view of Section 17 of the Registration Act, the said averment of the plaintiff that rent will be renewed for the next year from 1.4.2008 to 31.3.2009 at Rs. 9,000/- (Rupees nine thousand) only is denied in view of the fact that the said agreement dated 27.3.2007 is void in the eye of law and thus the same cannot be enforced. That the plaintiff in a very unilateral and arbitrary manner fixed the monthly rent of Rs. 9,000/- for the year 2008-2009, which the defendant did not agree upon as the same being not in consonance with the Assam Urban Areas Rent Control Act and thereafter the defendant has been filing rent before the learned Court of Munsiff No. 2, Jorhat. 14. The answering defendant stoutly denies the averment of the plaintiff in paragraph 14 of the plant, that the plaintiff is entitled to claim a sum of Rs. 9,000/- (Rupees nine thousand) only per month from the month of April, 2008. The answering defendant further denies that the plaintiff is entitled to compensation from the defendant for illegal and unauthorized occupation of the suit room by the defendant on from 1.4.2008 till the recovery of the khas and vacant possession of the suit room. The answering defendant further states that the tenanted premises of the defendant was constructed in the year 1968 and the same has not been renovated by the plaintiff since then and thus in view of the above there has been a depreciation of the tenanted premises of the defendant and thus in view of the above the plaintiff is not entitled to claim a sum of Rs. 9,000/- (Rupees nine thousand only) per month from the month of April, 2008. The answering defendant further denies that the plaintiff is entitled to arrear compensation from the defendant for illegal and unauthorized occupation of the suit room by the defendant on from 1.4.2008 till the recovery of khas and vacant possession of the suit room. 9,000/- (Rupees nine thousand only) per month from the month of April, 2008. The answering defendant further denies that the plaintiff is entitled to arrear compensation from the defendant for illegal and unauthorized occupation of the suit room by the defendant on from 1.4.2008 till the recovery of khas and vacant possession of the suit room. That, in answer to the averments allegations and claims of the plaintiff made in para 11 of the plaint it is submitted that the plaintiff is not entitled to any rent at the rate of Rs. 9,000/- and compensation as claimed in the suit. The defendant's occupation of the suit room is legal as she is so far a tenant in respect of the suit room and regularly paying monthly rent. 3. During the pendency of the suit, which was instituted in September, 2008, the defendant/petitioner filed Masc. (J) Case No. 27/2011 on 57.2011 under Section 10 read with Section 151 of the Code of Civil Procedure (CPC), 1908 praying for stay of the further proceeding of Title Suit No. 24/2008 till adjudication of Misc. (J) Case No. 27/2010, which was filed on 14.9.2010, by which amongst others fixation of fair rent in respect of the tenanted premises was prayed for. 4. The learned Trial Court has dealt with the above application by the impugned order dated 29.8.2011. The application i.e. Misc. (J) Case No. 27/2011 having been rejected by the impugned order dated 29.8.2011, the defendant/petitioner has filed the instant application under Article 227 of the Constitution of India praying for issuance of the above mentioned writ, order or direction. 5. I have heard Mr. D. Das, learned Sr. Counsel assisted by Mr. R. Singha, Learned Counsel for the defendant/petitioner as well as Mr. B. Chakraborty, Learned Counsel appearing for the plaintiff/respondent. Mr. Das, Learned Counsel for the petitioner submits that on the face of it, the impugned order dated 29.8.2011 is not sustainable in law inasmuch as the learned Trial Court committed jurisdictional error in holding that there is no scope for invoking Section 151 of the CPC bye-passing the provisions of Section 10. Mr. Das, Learned Counsel for the petitioner submits that on the face of it, the impugned order dated 29.8.2011 is not sustainable in law inasmuch as the learned Trial Court committed jurisdictional error in holding that there is no scope for invoking Section 151 of the CPC bye-passing the provisions of Section 10. He submits that the application in question having been filed under Section 10 read with Section 151 of the CPC, even if it is held that Section 10 CPC is not attracted, the provisions of Section 151 CPC cannot be ignored so as to deal with the kind of situation in which the matter stands. In this connection, he has referred to the decision of this Court reported in (1987) 2 GLR 109, On the death of Subho Ram Kalita His Heirs Smti Barada Bala Kalitani & Ors. v. Dharmeswar Das Koch & Ors., so as to emphasis that recourse to Section 151, CPC can be taken where the requirements of Section 10 of CPC are not satisfied. 6. Countering the above argument, Mr. Chakraborty, Learned Counsel representing the respondent submits that there being no jurisdictional error in passing the impugned order dated 29.8.2011, this Court exercising its power and jurisdiction under Article 227 of the Constitution of India will be reluctant to interfere with the said order. He also submits that if the plea of the petitioner is to be entertained for stay of the suit on the analogy that the determination of the suit will have to be preceded by fixing fair rent etc. there will be uncertainty to the suit, which will be an abuse of the process of law. 7. I have considered the submissions made by the Learned Counsel for the parties and have given my anxious consideration to the same. In Dharmeswar Das Koch (supra), the Division Bench of Court had the occasion to deal with the scope of Section 151 of CPC. It was observed that the Section 151 of CPC provides the inherent powers to the Court which is in addition to the powers specifically conferred on the Court by the Code. It was observed that the Court is free to exercise the powers conferred by Section 151 of CPC when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the legislature. It was observed that the Court is free to exercise the powers conferred by Section 151 of CPC when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the legislature. It has further been observed in the said decision that inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. 8. In the instant case, during the pendency of the suit filed in September, 2008, the prayer for stay of the same was made by the defendant/petitioner by filing Misc. (J) Case No. 27/2011 on 5.7.2011. In the application so filed, the provisions under Section 10 read with Section 151 of CPC were invoked. Section 10 of CPC provides for stay of suit. As per the said provision, no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in the previously instituted suit between the same parties. 9. The learned Trial Court dealing with the prayer of the petitioner has held that even if Misc. (J) Case No. 27/2010 is said to be a suit, Section 10 of CPC shall have no application to the case at hand. Since the provision of Section 10 of CPC provides for stay of subsequently instituted suit, learned Trial Court has held that the prayer of the defendant/petitioner for stay of Title Suit No. 24/2008, which was admittedly instituted prior to Misc. (J) No. 27/2010 is not liable to be stayed. 10. Learned Counsel for the petitioner has fairly admitted that Section 10 of CPC under which Misc. (J) Case No. 27/2011 was filed has no application for stay of the Title Suit No. 24/2008. However, he strenuously argued that since the application was also filed under Section 151 of CPC, considering the particular fact situation, it was incumbent on the part of the learned Trial Court to deal with the matter as per the principles involved towards exercising the jurisdiction under Section 151 of CPC. 11. I have given my anxious consideration to the submission so made. The application was filed under Section 10 read with Section 151 of CPC. 11. I have given my anxious consideration to the submission so made. The application was filed under Section 10 read with Section 151 of CPC. Even in this application under Article 227 of the Constitution of India, the petitioner has made specific averments regarding applicability of Section 10 read with Section 151 of CPC for stay of the suit. However, as noted above, Learned Counsel for the petitioner has fairly admitted that Section 10 of CPC will have no application to the case. 12. So far as Section 151 of CPC is concerned, same saves the inherent power of the Court empowering the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Needless to say that the said power will have to be exercised when the same is not in any conflict with what has been expressly provided in the Code or against the intention of the legislature. 13. When the petitioner made the prayer for stay of the suit, the provision of Section 10 of CPC was invoked. Section 10 of CPC provides for stay of subsequently instituted suit in issue. In the application, the petitioner specifically pleaded that the issue involved in both the cases i.e. Title Suit No. 24/2008 and Misc. (J) Case No. 27/2010 are basically one and the same and thus the suit is required to be stayed. When the provision of Section 10 of CPC does not provide for stay of the suit, the petitioner has now fallen back on the provision of Section 151 of CPC. It is in this context, learned Trial Court has held that when Section 10 of CPC does not have any application, the provision of Section 151 of CPC cannot invoked so as to bye pass the provision of Section 10 of CPC. In view of the above, I do not find any infirmity with the findings so recorded by the learned Trial Court. Consequently, the revision petition is dismissed. However, there shall be no order as to costs. Petition dismissed